Opinion
A148268
09-28-2018
THE PEOPLE, Plaintiff and Respondent, v. ARTHUR ABRAHAM, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Mateo County Super. Ct. No. SC014720A)
The trial court denied appellant Arthur Abraham's application for restoration of sanity and conditional release to a local outpatient program pursuant to Penal Code section 1026.2. Appellant contends: (1) he is being held in violation of due process because the state should have carried the burden of showing he remained insane; (2) the California procedure for determining whether a person found not guilty by reason of insanity (NGI) has been restored to sanity is unconstitutional because it allows a defendant to continue being held even when he ceases to be insane; and (3) his "traits" do not qualify as a "mental defect, disease or disorder." We affirm.
Further statutory references are to the Penal Code. --------
I. FACTS AND PROCEDURAL HISTORY
A. The Offenses and NGI Commitment
Appellant shot his pregnant common law wife, with whom he had a son, in 1984. In 1985, a jury found appellant NGI of the charged offenses of second degree murder and inducing criminal abortion and he was committed to the state hospital for a maximum term of 17 years to life. In 1985, the People refiled charges of sexual assault against the same victim and the parties stipulated to a finding that appellant was NGI as to these charges as well. Appellant was committed to the state hospital for a maximum term of 27 years and was transferred to Napa State Hospital in 1994.
B. Past Petitions for Outpatient Treatment
In 1996, appellant filed a petition seeking outpatient treatment under section 1026.2. The superior court denied the petition, a result affirmed on appeal in an unpublished decision. (People v. Abraham (July 21, 1997, A074868) [nonpub. opn.].) In 2005, appellant filed a petition for writ of habeas corpus, which was construed as a petition for outpatient treatment and ultimately denied. This result was also affirmed on appeal in an unpublished decision. (People v. Abraham (Sept. 28, 2007, A115860 [nonpub. opn.].) The superior court denied a third petition seeking placement in a conditional release program in 2013, which was again affirmed on appeal. (People v. Abraham (May 1, 2014, A138799) [nonpub. opn.].)
C. Current Petition
Appellant filed the current petition for outpatient treatment on February 25, 2015, alleging he was no longer a danger to the health and safety of others based on a mental defect, disease or disorder. A report prepared by Dr. Neil Khanna, a staff psychiatrist for the state, recommended that appellant be retained in custody. A hearing was held on May 2, 2016.
1. Appellant's Case
Dr. Robert Owen, a licensed clinical psychologist, evaluated appellant in 2012 and 2015 and testified on behalf of appellant. He interviewed appellant and evaluated his personal history, education, work history and medical records, but did not treat him. According to Dr. Owen, appellant did not have any serious criminality until he very violently raped his common law wife in 1984. Eight months later, appellant shot and killed her. In order to obtain a verdict of not guilty by reason of insanity, appellant feigned psychotic symptoms and he was diagnosed with psychosis by three court-appointed alienists who determined he was insane at the time of the crimes. When appellant first arrived at the state hospital he was diagnosed with a psychotic disorder, but after he confessed that he was feigning symptoms of psychosis, the hospital staff changed his diagnosis to malingering.
Dr. Owen diagnosed appellant with a personality disorder, which involves the way in which a person thinks, feels, and acts, such as obsessive-compulsive, narcissistic, or antisocial personality disorder. Personality disorders are hard to treat, and symptoms may decline with age. A personality disorder is different from a clinical disorder that requires treatment in a clinic, such as depression, schizophrenia, or bipolar disorder. Appellant did not fit the diagnostic criteria for a specific personality order, therefore, Dr. Owen diagnosed him with "other specified personality disorder with obsessive-compulsive and narcissistic traits." The narcissistic traits included feelings of entitlement, feeling superior to others, and being impatient with other people. The state hospital was not specifically set up to address personality disorders, and there was no real medication for personality disorders. However, some of the group therapy would address problems related to certain personality disorders.
Dr. Owen administered to appellant the Hare Psychopathy Checklist, which assesses whether a person is a typical psychopath. Appellant scored a 12 out of a possible 40, meaning he was considerably below the severe psychopathy range that would make him more typically aggressive. In previous tests by other psychologists, appellant got widely divergent scores. Dr. Owen also performed the Static-99R test, which assessed the risk of sexually reoffending. Appellant's score was negative 2, which was very low, and his likelihood of reoffending was around 2.8 percent.
In Dr. Owen's opinion, appellant was not NGI at the time of his initial commitment. Appellant did not have a type of mental disorder that Dr. Owen typically had seen in NGI cases, such as schizophrenia or bipolar disorder. Appellant had basically "conned the system." The personality disorder alone would not have been sufficient for an NGI verdict.
Over the 30 years of his commitment, appellant attended a variety of group therapy sessions, sex offender treatment, and general treatment to address his offenses. He had not been involved in any violent incidents, been medicated, or been placed in restraints. Appellant had been deceitful and manipulative. He had trouble with the staff. For a long time he was not remorseful about the rape and murder of his wife.
Appellant had never completed sexual offender treatment. After his last petition for restoration of sanity was denied, appellant reenrolled in sexual offender treatment, but he quit before he completed this program. Appellant was also encouraged by the hospital to attend dialectical behavior treatment (DBT), which he began and quit as well.
Dr. Owen thought appellant's likelihood of committing a new sex crime was very low because he was a 60-year-old man with diabetes and low testosterone. There was a 97 percent likelihood appellant would not commit a new sex crime. Therefore, he probably did not need years of sexual offender treatment.
Appellant was twice involved in "relationships" with female staff members that caused the staff members to be transferred out of the unit. He was alleged to have stalked and threatened one of the staff members. He also had a girlfriend in the hospital who cheated on him and got pregnant. Appellant never lashed out at her, but he was never alone with her.
Dr. Owen characterized the original crime as a crime of passion. His wife was unfaithful, and he was enraged. In Dr. Owen's opinion, it was speculative to consider that appellant's personality disorders contributed to the crime. Dr. Owen thought the year in the conditional release program (CONREP) would be a good time for him to transition back into the community, but he acknowledged the transition would be difficult.
2. The People's Case
The People called Dr. Nathan Thuma, M.D., a psychiatrist at Napa State Hospital who had treated appellant for a year. Dr. Thuma opined that appellant posed a risk of harm to others as a result of a mental disease, defect or disorder. Appellant's diagnosis was "other specified personality disorder" featuring antisocial and narcissistic traits. The diagnosis was "other" specified because appellant did not meet the full criteria for any single personality disorder. Appellant had had the same diagnosis for a long time.
Appellant's antisocial traits included the crimes for which he was committed, lack of empathy for the victims or for other people, and failure to conform to norms, such as not conforming to the advice of hospital staff. He was deceitful and manipulative. He had lied about his sexual history and lied on a lie detector test. The only reason he had not been diagnosed with antisocial personality disorder was that the hospital did not have information that he had exhibited those traits prior to the age of 15. Appellant's narcissistic traits included being hotheaded and intimidating. He denigrated and was critical of people and required an excessive amount of attention.
The hospital wanted to administer new psychological tests before the hearing on appellant's petition, but appellant refused to cooperate because he did not want the results used in court. In past testing, appellant scored "somewhere in the middle" on a test used for predicting possible future violence, with a score that was associated with a 35 percent chance of violent recidivism in seven years and a 48 percent chance of violent recidivism in ten years. On a past test measuring risk of violent sexual recidivism, appellant's score was associated with a 49 percent chance of violent recidivism in seven years and a 59 percent chance of violent recidivism in ten years. Dr. Thuma could not explain the difference in the Hare test scores.
In Dr. Thuma's opinion, appellant continued to pose a danger to the community. Appellant did not follow directions, refused to do certain things, and would get extremely angry. On several occasions, Dr. Thuma had to spend time with him to cool him off when he was angry. Also, the crimes appellant committed before entering the hospital were powerfully predictive of future behavior, including violence.
Appellant had several incidents at the state hospital that showed he continued to have problems with women. He got into an inappropriate relationship with a worker at a hospital in 1991, and when the relationship was exposed he wanted to sue the person involved, the doctor, and the hospital. Then, in 1999, he made advances toward a young social worker at the hospital. He stalked her and when his behavior was exposed, he got very angry. In 2003, he had a work detail experience where he alienated all the women he was working with and had to be removed from the program. He was not able to live on a coed unit.
Another concern was appellant's failure to complete treatment. In 2006, CONREP decided he needed sex offender therapy treatment, but appellant had not completed the treatment. Appellant had started the treatment several times, but at a certain point refused to continue. He argued with treatment providers and did not trust the staff or doctors at Napa State Hospital. He started DBT treatment, which would have been useful to treat his personality disorder, but then after a certain point refused to continue. He later went back to sex offender treatment, where he refused to cooperate again, and then went back to DBT with the same results. Appellant understood that he needed to finish the various treatments in order to be released to CONREP. Appellant also tried a "Transition To" program, which Dr. Thuma described as a "debacle." On the first day of the program, appellant alienated the group leader by grandstanding, saying he was not sick and the treatment was not going to help him, and overall not setting the right tone for the group. The group leader kicked him out of the session. Dr. Thuma thought appellant was too "persnickety and stubborn" to follow the rules and regulations of CONREP.
3. The Trial Court's Ruling
The trial court denied appellant's petition, noting that even though appellant's personality disorder did not fall into a specific personality disorder category, there was no disagreement between Drs. Thuma and Owen that appellant had a mental disorder. Appellant's refusal to go through the treatment programs concerned the court, because such treatment programs show progress and "a certain degree of acknowledgement on his part of wrongdoing and acceptance of responsibility" and appellant's refusal to complete the treatment programs was a reflection of his manipulative behavior, which began when appellant manipulated his way into the system in the first place. Appellant's continued manipulation caused the court concern "with respect to the danger he poses." The court described appellant as "toxic." In light of the evidence and the totality of the circumstances, the court ruled that appellant "suffers from a mental disorder which is likely to pose a danger to the health and safety of others, so the petition is going to be denied at this point."
II. DISCUSSION
Under California law, one of the ways a defendant who has been found NGI may be released is by applying for a restoration of sanity under section 1026.2. First, the court holds a hearing to determine whether the applicant " 'would be a danger to the health and safety of others, due to mental defect, disease, or disorder, if under supervision and treatment in the community.' " (§ 1026.2, subd. (e).) "If the court finds no impediment, it shall order the person to be placed in a local outpatient program for a period of one year. At the end of the year, the court shall conduct a trial 'to determine if sanity has been restored, which means the applicant is no longer a danger to the health and safety of others, due to mental defect, disease, or disorder.' " (People v. Beck (1996) 47 Cal.App.4th 1676, 1681 (Beck).) At issue here is the first step of this procedure.
A. Burden of Proof
A person who applies for outpatient treatment and a restoration of sanity under section 1026.2 has the burden of proof by a preponderance of the evidence. (§ 1026.2, subd. (k); People v. Bartsch (2008) 167 Cal.App.4th 896, 903 (Bartsch).) Appellant argues that placing the burden on him violates due process and runs afoul of the Supreme Court's decisions in Foucha v. Louisiana (1992) 504 U.S. 71 (Foucha) and Addington v. Texas (1979) 441 U.S. 418, 425 (Addington). We disagree. "There is nothing unusual about placing this burden of proof on [the] defendant." (People v. Sword (1994) 29 Cal.App.4th 614, 624 (Sword); see also In re Franklin (1972) 7 Cal.3d 126, 147 [approving preponderance-of-the-evidence standard.)
Addington involved a statute that allowed for an indefinite civil commitment without a criminal act. The Court concluded the Fourteenth Amendment's due process clause required the state to prove dangerousness (in a case where mental illness was conceded) by clear and convincing evidence. (Addington, supra, 441 U.S. at pp. 431-433.) "The Addington Court expressed particular concern that members of the public could be confined on the basis of 'some abnormal behavior which might be perceived by some as symptomatic of a mental or emotional disorder, but which is in fact within a range of conduct that is generally acceptable.' [Citations.] In view of this concern, the Court deemed it inappropriate to ask the individual 'to share equally with society the risk of error.' [Citation.] But since automatic commitment . . . follows only if the acquittee himself advances insanity as a defense and proves that his criminal act was a product of his mental illness, there is good reason for diminished concern as to the risk of error. More important, the proof that he committed a criminal act as a result of mental illness eliminates the risk that he is being committed for mere 'idiosyncratic behavior.' [Citation.] A criminal act by definition is not 'within a range of conduct that is generally acceptable.' [Citation.] . . . [C]oncerns critical to . . . Addington are diminished or absent in the case of insanity acquittees. Accordingly, there is no reason for adopting the same standard of proof in both cases. '[D]ue process is flexible and calls for such procedural protections as the particular situation demands.' " (Jones v. United States (1983) 463 U.S. 354, 367-368, fn. omitted.)
Foucha does not require a different result. In that case, the defendant was being held after a verdict of NGI and was concededly no longer mentally ill. (Foucha, supra, 504 U.S. at p. 73-75.) The court struck down a statute that enabled the state to continue holding an NGI committee after he had recovered his sanity only if he was no longer dangerous (Ibid.) Foucha does not stand for the proposition that it is improper to require a defendant to prove by a preponderance of the evidence that he no longer suffers from a mental illness or is dangerous once there has been an initial insanity commitment. (See Sword, supra, at p. 624.)
B. Cessation of Insanity
Appellant argues he is entitled to release because it is unconstitutional to hold him when he is no longer insane. Again we disagree. Although a petition under section 1026.2 is commonly referred to as a petition regarding a restoration to sanity, the statute actually calls for release "[i]f the court at the hearing determines the applicant will not be a danger to the health and safety of others, due to mental defect, disease, or disorder, while under supervision and treatment in the community." (§ 1026.2, subd. (e).) This imposes a different standard for release than an initial commitment proceeding. (People v. Williams (1988) 198 Cal.App.3d 1476, 1480; see also People v. McCune (1995) 37 Cal.App.4th 686 [allowing different mental illness to underlie NGI extension under 1026.5 than that underlying initial NGI commitment].)
Appellant again cites Foucha in support of his claim, and that decision again fails to assist him. (Foucha, supra, 504 U.S. at p. 79.) Foucha requires a finding of current mental illness and dangerousness to support a civil commitment. It does not say the mental illness must be the same one as the one underlying the initial NGI determination. Under appellant's reasoning, the state would be required to release a dangerous NGI committee on the ground his diagnosis had changed. The California statutes were amended to conform with Foucha in 1993. (Beck, supra, 47 Cal.App.4th at pp. 1681-1682.) No more is required on this front.
c. Appellant's "Traits" as Mental Disorder
Appellant contends he does not have a "mental defect, disease, or disorder" as is necessary to support the denial of his petition for outpatient treatment. We review the claim for abuse of discretion, drawing every reasonable inference in favor of the trial court's determination. (Sword, supra, 29 Cal.App.4th at pp. 624-625.) " 'Under that standard, it is not sufficient to show facts affording an opportunity for a difference of opinion. [Citation.] '. . . [D]iscretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered." ' " (Bartsch, supra, 167 Cal.App.4th at p. 900.)
According to Dr. Thuma, the People's expert, appellant was diagnosed as having an "other specified personality disorder" featuring antisocial and narcissistic traits. He did not fully meet the criteria for a single personality disorder, and had had the same diagnosis for a long time. Appellant's expert, Dr. Owen, did not disagree with this diagnosis, and whether it amounted to a mental defect, disease or disorder was a question of fact for the trial court. (People v. Williams (2015) 242 Cal.App.4th 861, 872-873 [rejecting claim that defendant who suffered from personality disorder not otherwise specified did not suffer from mental disease, defect or disorder under § 1026.2]; People v. Superior Court (Blakely) (1997) 60 Cal.App.4th 202, 213-214 [question of fact as to whether antisocial personality disorder qualifies under § 1026.2].)
III. DISPOSITION
The judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
JONES, P.J. /s/_________
SIMONS, J.